The following material facts are not in dispute: The poet Vasyl Stus was arrested for the second time in 1980. His case was brought to trial in the same year. The Soviet Court appointed Soviet attorney Viktor Medvedchuk to defend him. Stus met with Medvedchuk and declined his representation. Nonetheless, the Court insisted upon Medvedchuk’s defense sometimes even in Stus’ absence. In his client’s defense Medvedchuk admitted all of the charges, but asked for clemency based on Stus’ productive work as a menial factory worker for the state in the period between his arrests. Stus died in prison in September 1985. In 2019 Ukrainian-Georgian journalist Vakhtang Kipiani specializing in history published a book entitled “The Case of Vasyl Stus Collection of Documents from the archives of the former KGB of the Ukrainian SSR” in which he wrote about the role of Medvedchuk in the case. Medvedchuk, a notorious oligarch, businessman, media mogul and politician connected by familial ties and brazen access to Russian president Vladimir Putin brought a civil lawsuit to stop publication. On October 19,2020 the Kyiv court for the region of Darnycia ruled essentially for Medvedchuk, ordering that six references to Medvedchuk in the subject book must be deleted and enjoining the sale and dissemination of the publication. According to the Court, these are the objectionable references:
it is a fact that the name of the appointed attorney supported by state security was Viktor Medvedchuk;
at trial Medvedchuk admitted that all crimes alleged to have been perpetrated by his defendant deserve punishment;
in essence he supported the allegations. You don’t need a prosecutor when there are such cooperating lawyers;
the poet was crucified by his own court appointed attorney;
a sixth of the communist system was attorney Medvedchuk;
Medvedchuk’s crime against Stus was further aggravated by not notifying the family of the commencement of the trial.
Such a decision would not have been handed down in all likelihood by an American court for two reasons: first, because truth is a defense to any defamation civil lawsuit and second, because in this case since Viktor Medvedchuk is a very public person even misrepresentations against him would have to include an element of malice on the part of Kipiani for them to be punishable.
In the United States we tend to malign public persons quite often without repercussion and perhaps deservedly. In Europe, however, a public person’s reputation is considered almost sacrosanct and a determination of what is defamatory must strike a balance between an individual’s freedom of expression versus the protection of the reputation of public figures. In any event certain defenses available in U.S. Courts are available generally in European courts as well. Ukrainian defamation laws are generally congruent with European laws. Justification or truth, fair comment which is explained as fair and honest action on the part of the alleged defamer and finally privilege which would not apply to this case but would apply to statements made in parliament, court, etc. are considered defenses in defamation proceedings.
It would appear that Kipiani’s comments would have to be supported by truth and, according to European law, the burden of proving the truth is on Kipiani.
Inasmuch as his book is based on documents from Soviet archives this may be problematic. On the one hand it is likely that the sole material eyewitness to the court proceeding is Viktor Medvedchuk who is likely to present an entirely different version of the truth. Certainly he will not incriminate himself. On the other hand, the supreme irony here is that Medvedchuk will separate himself disingenuously from Soviet documents as he has hinted on more than one occasion. Quite the conundrum.
And so very often the bad go unpunished. And equally often the good are blamed for simply telling or relating the truth. There will be an appeal but this case is far from being open and shut. Hope springs eternal, but justice is often a victim to what we know as jurisprudence.
October 20, 2020 Askold S. Lozynskyj